Mutual Legal Assistance (MLA)

Countries need to co-operate in the investigation, prosecution and recovery of assets to ensure an effective combating of trans-national crime. There should also be the ability to conduct joint investigations and to transfer criminal proceedings when necessary.

Police - to - police enquiries, known sometimes as Mutual Administrative Assistance, can be used to initiate enquiries abroad to trace assets suspected of being in other jurisdictions. Such contacts, together with enquiries through Interpol, will enable a State to discover whether it will need to use Mutual Legal Assistance to further the investigation or recovery of assets.

Mutual Legal Assistance is the provision of assistance on a formal legal basis, usually in the gathering and transmission of evidence, by an authority of one country to an authority in another, in response to a request for assistance. "Mutual" simply denotes the fact that assistance is usually given in the expectation that it would be reciprocated in like circumstances, although reciprocity is not always a precondition to the provision of assistance.

Obstacles to effective co-operation include the principle of dual criminality, where one State will only execute a request for assistance from another only where the offence under investigation is also an offence in the requested state; the principle of speciality, whereby the information obtained can only be used for the requested purpose; some offshore jurisdictions limit the scope of their co-operation where the offences involved are fiscal in nature; and States sometimes limit their co-operation to certain types of criminal offences; also some countries do not recognize freezing or confiscation orders made in another country.

To ensure the effective tracing, freezing, seizure, confiscation and return of assets full use must be made of the available Treaties and Conventions that enable mutual legal assistance to be rendered. To this end, countries must be encouraged to sign up to international mutual assistance treaties and/or to negotiate multi- or bi-lateral treaties.
To freeze assets, to obtain evidence for a prosecution or to have a forfeiture or a confiscation order enforced, a Letter of Request has to be prepared asking for enquiries, actions etc to be carried out, and sent to the Competent Authority of the country who is to execute the enquiries requested to be made.

The powers of the authorities in each country vary and it will be necessary to establish what can and cannot be obtained through discussions with the relevant authorities in that country. Whenever coercive powers, such as search and seizure, information from financial institutions, the formal taking of evidence from a suspect or witness or for the freezing and confiscation of assets, are required to be used, formal Mutual Legal Assistance request will have to be made.